Possession Of a Firearm During Commission of a CDS Offense

Being charged with possession of a firearm during the commission of a CDS offense can lead to severe penalties in New Jersey. This charge, under N.J.S.A. 2C:39-4.1, is triggered when someone possesses a firearm while committing certain drug crimes. If convicted, you’re looking at a mandatory minimum prison sentence of 5 years. Yikes!

As a criminal defense lawyer in New Jersey, I’ve handled many of these types of cases. My goal is always to avoid a lengthy jail sentence for my clients. Let’s take a closer look at this offense and some possible defenses.

The Basics of the Charge

New Jersey law makes it a second-degree crime to possess a firearm while committing certain CDS offenses. The drug crimes that can trigger this charge include:

• Being a leader of a narcotics trafficking network
• Maintaining a CDS production facility
• Possession with intent to distribute
• Distributing drugs within 500 feet of a public park
• Distributing drugs within 1000 feet of a school
• Employing a juvenile in drug distribution

Simply having a gun in your possession while committing one of those drug crimes is enough to face this charge. The prosecution doesn’t need to prove you intended to use the gun. Just having it is illegal.

If the weapon is something other than a firearm, like a knife or bat, the prosecution must also prove you intended to use it unlawfully against a person or property.

Penalties

A conviction under N.J.S.A. 2C:39-4.1 has severe penalties:

• 5-10 years in state prison if the weapon was a firearm
• Up to 5 years in prison if the weapon was not a firearm
• Fines up to $150,000

In addition, any sentence must run consecutive to the sentence for the underlying drug crime. So if you’re convicted of distribution and this firearm offense, the sentences must run back-to-back instead of concurrent.

Defenses to This Charge

Fighting these types of charges takes an experienced criminal defense lawyer. Some possible defenses include:

• You did not possess the firearm. If the gun was not found on your person, you can argue you never actually or constructively possessed it.
• The firearm was obtained lawfully. For example, if you have a valid permit to carry a handgun, that could undermine the prosecution’s case.
• You were misidentified. Eyewitness misidentification is a common cause of wrongful convictions. If the police allege you had a gun based only on a witness statement, the ID can be challenged.
• You were not engaged in a CDS offense. You must be committing one of the qualifying drug crimes for this charge to apply. If you can show you were not dealing drugs, you should beat the charge.
• The weapon was not a firearm. Since the penalties are lower when the weapon is not a gun, you may be able to negotiate a better plea deal if the weapon was something else.

Sentencing Options

If you are convicted of this offense, all hope is not lost. An experienced criminal lawyer can argue for sentencing alternatives that avoid lengthy jail time:

• Drug Court – This diversionary program involves strict supervision and treatment instead of incarceration.
• Extended Term Drug Rehab – The court has discretion to order inpatient drug treatment for up to 5 years as an alternative to prison.
• Suspended Sentence – The judge can suspend the mandatory minimum sentence if you qualify for probation.
• Downgrade of Charges – Pleading guilty to a lesser 3rd or 4th degree CDS offense may avoid the mandatory minimum.

Don’t Go It Alone

The stakes are high if you are charged with possession of a firearm during a drug crime. These cases can be defended, but it takes an aggressive lawyer willing to dig into the facts and challenge the prosecution’s evidence.

A skilled criminal defense attorney can advise you of all your options, including potential defenses and sentencing alternatives. Don’t leave your fate to chance. Consult an experienced lawyer immediately if you are facing this charge in New Jersey.